Govind Yadav vs Settlement Officer ...
2023 Latest Caselaw 22124 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:54484
 
Court No. - 18
 

 
Case :- WRIT - B No. - 621 of 2023
 

 
Petitioner :- Govind Yadav
 
Respondent :- Settlement Officer Consolidation, Gonda And 2 Others
 
Counsel for Petitioner :- Pradeep Kumar Shukla
 
Counsel for Respondent :- C.S.C.,Pankaj Gupta
 

 
Hon'ble Saurabh Lavania,J.

Heard Sri Pradeep Kumar Shukla, learned counsel for the petitioner, Sri Ashok Kumar Singh 'Pankaj', learned counsel for the opposite party No.2, who filed his Vakalatnama, which is taken on record as also Sri Hemant Kumar Pandey, learned counsel for the State.

Present petition has been filed for the following main relief(s):-

"(i) A writ, order or direction in the nature of certiorari to quash the impugned order dated 01.05.2023, passed by the opposite party No.1 in Case/Appeal No.156/2023 (Computer Case No.202354083000000156), titled as Rajaram Vs. Dalbahadur and Another, under Section 11(1) of U.P.C.H. Act, contained as Annexure No.1, to this writ petition.

(ii) A writ, order or direction in the nature of certiorari to quash the entire proceedings pending before opposite party No.1 by virtue of Case/Appeal No.156/2023 (Computer Case No.202354083000000156), titled Rajaram Vs. Dalbahadur and Another, under Section 11(1) of U.P.C.H. Act."

At the very outset, Sri Ashok Kumar Singh, learned counsel for the opposite party No.2 stated that in view of the judgment of Hon'ble Apex Court passed in the case of Jacky vs. Tiny reported in (2014) 6 SCC 508; present petition seeking relief No.(ii) is not liable to be entertained.

In response, learned counsel for the petitioner stated that he would not press the relief No.(ii) and would press only relief No.(i).

In regard to relief No.(i), it is stated that challenging the order dated 21.02.2011 passed by the Consolidation Officer in the proceedings instituted under Section 12 of the U.P. Consolidation of Holdings Act, 1953 (in short "Act of 1953") in regard to Gata No.3477 (New Gata No.3593) situated at Village-Tulsipur Manjha, Pargana-Nawabganj, Tehsil-Tarabganj, District-Gonda, which was registered as Case No.257, an appeal bearing No.0156 of 2023, Computerized Case No.202354083000000156 was filed under Section 11(1) of the Act of 1953 by the opposite party No.2 along with application for condonation of delay, duly supported by an affidavit.

As the appeal alongwith an application for condonation of delay challenging the order dated 21.02.2011 was filed in the year 2023, the opposite party No.1 passed the order dated 28.02.2023 whereby directed to summon the record and also issued notices to private opposite parties. Thereafter, general dates were being fixed and on 01.05.2023 the opposite party No.1 without deciding the application for condonation of delay, passed the order impugned dated 01.05.2023, whereby stayed the implementation and operation of the order, under appeal, dated 21.02.2011.

He also stated that as per settled view, the issue of condonation of delay should be decided before passing any interim order as before condoning the delay for all practical purposes there would be no appeal. In support of his submissions, learned counsel for the petitioner placed reliance on the judgment passed by the Division Bench of this Court in Consolidation No.6574 of 2016 (Ram Prakash vs. Deputy Director of Consolidation, Hardoi & Others), decided on 03.02.2022 as also the law laid down by the Hon'ble Apex Court in the case of Noharlal Verma vs. Dist. Cooperative Central Bank Ltd. reported in (2008) 14 SCC 445. Reference has also been made to the judgment passed by the Hon'ble Apex Court in the case of State of West Bengal vs. Somdeb Bandyopadhayay, reported in (2009) 2 SCC 694.

In paragraphs 19, 20 and 21 of the judgment passed in the case of Ram Prakash (Supra), the Division Bench of this Court observed as under:-

"19. We are not going into the issue as to whether an order passed by appellate authority on an application seeking condonation of delay is an interim order or final as the same has not been referred for consideration by the Division Bench. Different situations may arise in an appeal filed along with application seeking condonation of delay. Firstly, the application for seeking condonation of delay may be dismissed. As a consequence thereof, the appeal will also fail. Another situation may be that application seeking condonation of delay is allowed and thereafter the appeal may either be accepted or rejected.

20. If any statute provides certain period for filing of appeal, an appeal filed beyond the time limit will certainly be not entertained. If the provisions of 1963 Act are applicable and party is entitled to seek condonation of delay in filing appeal, an application has to be filed specifying the grounds on which delay in filing the appeal is sought to be condoned. It is only after that the application is allowed, the appeal can be entertained and heard on merits. Before that the appeal cannot be taken up and considered on merits.

21. As far as the issue regarding hearing of the application seeking condonation of delay and the appeal simultaneously is concerned, in our view, firstly the application has to be considered. Only thereafter, the appeal can be considered on merits but there is nothing in law which requires hearing of appeal on merits to be postponed mandatorily after acceptance of the application seeking condonation of delay. Both can be taken up on the same day. However, the appeal has to be heard on merits only after the application seeking condonation of delay has been accepted."

In paragraph 32 of the judgment passed in the case of Noharlal Verma (Supra), the Hon'ble Apex Court observed as under:-

"32. Now, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation, a court or an adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits."

In paragraph 7 of the judgment passed in the case of State of West Bengal (Supra), the Hon'ble Apex Court observed as under:-

"7. It is to be noticed that even without condoning the delay and entertaining the writ appeal the High Court has passed a series of interim orders. Such a course is impermissible as the appeal was non est in the eye of the law without it being entertained. Admittedly, the delay in preferring the writ appeal was not condoned at the time when the interim orders were passed. The High Court has committed another error in holding that the writ petition was dismissed principally on the ground that it was the decision of the governing body as to who should be its Secretary, although government approval is necessary for appointment of the Secretary of the governing body of the institute. On the contrary, the learned Single Judge dismissed the writ petition principally on the ground that factual controversy is involved. The Division Bench has not discussed this aspect at all. Therefore, the order is clearly indefensible."

Learned counsel for the contesting opposite party opposed the present petition, however, could not dispute the settled law on the issue involved in the present petition.

Considered the submissions advanced by the learned counsel for the parties and perused the record.

Taking note of aforesaid as also that the legal proposition, indicated above, which could not be disputed by the learned counsel for the opposite party No.2 as also by the learned counsel for the State, this Court is of the view that matter requires consideration.

Accordingly, the impugned order dated 01.05.2023 passed by the opposite party No.1 is set aside and the matter is remanded back to the opposite party No.1-Settlement Officer of Consolidation, District-Gonda to decide the application for condonation of delay first, and thereafter, proceed to decide the application seeking interim relief as also the appeal on merits.

The needful shall be done by the opposite party No.1 within a period of two months from the next date fixed in the appeal so far as it relates to disposal of application seeking condonation of delay and application for interim relief afresh and thereafter, decide the appeal expeditiously say within a period of six months.

The concerned authority shall avoid unnecessary adjournments to either party.

It is further provided that while conducting the proceedings the proper opportunity shall be provided to the parties to the proceedings.

On the apprehension of learned counsel for the opposite party No.2, learned counsel for the petitioner says that petitioner would not transfer/alienate the property, in issue as also would not create any charge over the same till disposal of application for condonation of delay. Order accordingly.

The petition is allowed in aforesaid terms.

Order Date :- 17.8.2023

Vinay/-